Patrick James Tiernan v The North Western Regional Fisheries Board.
Judicial Review - Applicant applied for licence to deal in salmon - Obtained certificate of fitness from District Judge - Application for licence refused by Fisheries Board - Whether Board had acted reasonably - Whether applicant should have been given opportunity to specify his case - Whether applicant should have been given opportunity to respond to any information adverse to his case - Whether Board engaged in quasijudicial function - Fisheries (Con- solidation) Act 1959 (No 14).
The High Court (before Mr Justice Barr); judgment delivered 12 May 1997.
The requirement in the interests of the common good that salmon traders must be licensed to engage in such commercial activity is a potential interference with and restriction of their basic right to carry on lawful business. Accordingly, a fisheries board, in exercising its function to grant or refuse an application for a licence, must perform its duty fairly and reasonably, having proper regard to the commercial rights of the applicant.
The High Court so held in quashing the respondent's decision to refuse the applicant's application for a salmon dealing licence and directing the respondent to reconsider the application in accordance with the procedure indicated in the judgment.
Conor J Maguire SC and Elizabeth Maguire BL for the applicant; James Macken SC and Terence Coghlan BL for the respondent.
Mr Justice Barr said that the applicant was a shopkeeper who, in 1996, had decided to extend his business of trading in fishing equipment to include salmon trading. Therefore, pursuant to section 158 of the Fisheries Consolidation Act 1989, he had applied to the local District Judge for a certificate of fitness. Section 159 of the 1989 Act goes on to provide that every proposed salmon trader should then apply, in the prescribed form, to their relevant fisheries board for a licence, enclosing the certificate of fitness along with the excise duty payable on such a licence. The applicant had observed this procedure, indicating on the application form only the nature of the licence sought, the name and address of the applicant, his signature and the date and amount of fee being paid. Mr Justice Barr said that there was nothing on the form to indicate that any additional information should have been included. The respondent considered this application on 7 May 1996. On 17 May 1996 the applicant was informed in writing that his application had been refused. This communication indicated that the respondent had had regard to the applicant's principal business and the existence of other licensed dealers in the applicant's area in reaching its decision. Through his solicitor the applicant sought further information relating to the refusal, in particular the grounds relied on by the respondent. The respondent eventually replied that in considering such applications, it was entitled to take into account all relevant matters including the location of the applicant's premises, the nature of the business in which he was already involved and the number of other licensed outlets in the locality.
The applicant was dissatisfied with this explanation and on 29 July 1996 obtained leave from the High Court to proceed for an order of certiorari in respect of the respondent's refusal and an order of mandamus directing the respondent to consider the applicant's application. He also sought a declaration that the purported decision was ultra vires.
The respondent claimed that every salmon dealer was obliged to keep a register documenting all purchases and sales of salmon. One of the respondent's officials was then required to inspect the dealer's premises and register on a regular basis. This, the respondent argued, placed a considerable burden on the respondent's resources and staff during the main salmon season. Therefore the respondent had a policy of restricting the number of licences issued and, in considering applications, it took into account the factors previously outlined to the applicant. Because the applicant was not involved in the food retail business, and because of the other licensed dealers in the area, the application had been refused. In response to this the applicant argued that he had not been afforded the opportunity of informing the respondent of the work he had intended to carry out to provide proper storage facilities for the salmon. In addition the applicant claimed that out of the three licensed dealers in his area, only one actively availed of his licence.
Mr Justice Barr stated that the primary objective of the 1989 Act was to protect fisheries on a regional basis. The reason for requiring salmon dealers to obtain a certificate of fitness was, he stated, to ensure that the dealer would not engage in or facilitate salmon poaching or other unlawful activities; in addition, it established that the Oireachtas regarded the business as being a significant commercial activity. Mr Justice Barr accepted the decision in O'Connell v South Western Regional Fisheries Board (unreported, High Court, 15 April 1986) that the respondent's power to grant licences under the Act was permissive and not mandatory. However, Mr Justice Barr felt that the requirement in the interest of the common good that salmon traders be licensed, was a potential interference with, and restriction of, their basic right to carry on a lawful business.
Accordingly the respondent was under an obligation to perform its duties fairly and reasonably, having proper regard to the commercial rights of the applicant. Mr Justice Barr was satisfied that this entailed inviting the applicant to specify the case he wished to make in support of his application and, where information adverse to an applicant was furnished to the respondent, it entailed inviting him to respond to any such matter. The respondent was not conducting a purely administrative function but was also engaged in a quasi-judicial process. Thus, in accordance with the decision in Flanagan v University College Dublin [1989] ILRM 469, the procedures adopted by the respondent had to be reasonable having regard to the consequences for the person concerned in the event of an adverse decision. Mr Justice Barr found that the respondent could not refuse an application for a licence because it did not have the manpower to monitor another business. The respondent had failed in its duty to act fairly and reasonably and the decision in that regard had to be quashed.
Solicitors: P. O'Connor & Son (Mayo) for the applicant; McHales (Mayo) for the respondent.